Computer underground Digest Sun Apr 14, 1996 Volume 8 : Issue 30
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #8.30 (Sun, Apr 14, 1996)
File 1--ACLU v. Reno trial update (4/12/96)
File 2--The Computer Law Observer #17
File 3--Mike Godwin: "The Backlash Against Free Speech on the Net"
File 4--Cu Digest Header Info (unchanged since 7 Apr, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
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Date: Sat, 13 Apr 1996 08:24:22 -0700 (PDT)
From: Declan McCullagh
Subject: File 1--ACLU v. Reno trial update (4/12/96)
ACLU v. RENO: TRIAL UPDATE
* 1st Government Witness Acknowledges Difficulty in Finding Sexually
Explicit Material Online
* 2nd Government Witness Returns Monday to Conclude Testimony
* Plaintiffs have option to rebut government case Monday
FOR IMMEDIATE RELEASE
Friday, April 12, 1996
PHILADELPHIA -- Testifying for the government today, Special Agent Howard A.
Schmidt acknowledged, in answer to skeptical questioning by a three-judge
panel, that it is "highly unlikely" for anyone to come across sexually
explicit sites on the Internet by accident.
As the first witness for the government, Agent Schmidt began the morning with
a live Internet tour and demonstration of a search for so-called indecency.
The demonstration stopped short of actually displaying any of the images,
but traced for the court the route by which Schmidt arrived at various web
sites.
Schmidt acknowledged -- under cross-examination -- that majority of the sites
he found would have been off limits had he been running a software program
such as SurfWatch, that blocks access to Internet sites considered
inappropriate for children.
Marjorie Heins, who conducted cross-examination for the ACLU, noted that
Agent Schmidt's expertise -- and the government's case -- lies in focusing on
a very narrow category of sexual material, much of which is already covered
by existing obscenity law.
"In today's testimony, the government attempted to divert the court's
attention from the serious concerns of our plaintiffs by focusing on material
that is highly inflammatory and largely irrelevant to this case," Heins said.
The consolidated cases of ACLU v. Reno and ALA v. DOJ challenge provisions of
the Communications Decency Act that criminalize making available to minors
"indecent" or "patently offensive" speech.
Under questioning by the judges, Agent Schmidt was asked how he would enforce
the censorship law when confronted with a safe-sex information web-site that
displayed an image illustrating how to put a condom on an erect penis.
Agent Schmidt said that since the context was "educational, not purely for
pleasure purposes," he would not censor the site but advise the publishers to
post warnings.
His answer was different when asked how he would rate an online copy of the
controversial Vanity Fair magazine cover featuring the actress Demi Moore,
nearly naked and eight months pregnant.
In that case, Schmidt said, the Communications Decency Act would apply
because the image was "for fun." He also said, in answer to a query from
Judge Stuart Dalzell, that the community standard as to the offensive of the
image might be different for Minnesota than it would for New York.
"It is ironic that, according to the government, an explicit online image of
an erect penis in an educational context would be acceptable, whereas Vanity
Fair, a constitutionally protected publication containing a much less
explicit image, would be censored," Heins said.
Following Agent Schmidt's testimony, the final plaintiff witness, Dr. Albert
Vezza, told the judges about PICS (Platform for Internet Content Selection),
a new rating system designed to allow parents to control children's access to
the Internet without censorship.
Dr. Vezza is associate director of the MIT Laboratory for Computer Sciences
and has chief responsibility for the PICS project. He was unable to testify
earlier in the case due to scheduling conflicts.
Dr. Vezza said he expected that wide industry acceptance of the PICS standard
would enable any number of "third-party" organizations such as the PTA, the
Christian Coalition or the Boy Scouts of America to rate content for Internet
users.
The second and final government witness, Dr. Dan Olsen, a professor of
computer science at Brigham Young University, took the stand in the
mid-afternoon.
Dr. Olsen acknowledged that the PICS standard would allow parents to control
their children's Internet viewing according to their own values or via a
rating system devised by a trusted organization.
He also acknowledged that a system he had conceived in which Internet sites
must be labelled by the content originator, would not allow for such an
independent rating scheme.
While plaintiff lawyers completed cross-examination of Dr. Olsen today, he
will return on Monday for redirect by government lawyers and to answer any
questions the judges may have.
It is now anticipated that Monday, April 15, will be the last day of trial in
ACLU v Reno. Plaintiff lawyers will have the opportunity on Monday (instead
of April 26) to call witnesses to rebut the governments's testimony.
However, the ACLU and ALA coalitions did not indicate which witnesses, if
any they would call.
Because the April 26 rebuttal day is no longer necessary, the next date in
court is set for June 3, when the three-judge panel will hear oral arguments
from both plaintiffs and defendants.
The judges are expected to issue a ruling some time in the weeks following.
Under expedited provisions, any appeal on rulings regarding the new
censorship law will be made directly to the U.S. Supreme Court.
Lawyers for the ACLU appearing before the judges are Christopher Hansen,
Marjorie Heins, Ann Beeson, and Stefan Presser, legal director of the ACLU of
Pennsylvania.
------------------------------
Date: Thu, 28 Mar 1996 13:25:03 +0100
From: "William S. Galkin"
Subject: File 2--The Computer Law Observer #17
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THE COMPUTER LAW OBSERVER
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March 28, 1996 (#17)
=====================================
GENERAL INFO: The Computer Law Observer is distributed (usually) every
other week for free and is prepared by William S. Galkin, Esq. The
Observer is specifically designed for both lawyers and non-lawyers. To
subscribe, send e-mail to wgalkin@earthlink.net. All information
contained in The Computer Law Observer is for the benefit of the
recipients, and should not be relied on or considered as legal advice.
Copyright 1996 by William S. Galkin.
=====================================
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AT THE LIMITS OF LAWFUL SECRECY
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[This is the fourth of a series of articles discussing privacy rights in
the digital age.]
Philip Zimmermann is now a folk hero in privacy rights circles - and a
hot commodity in commercial circles. Zimmermann is also extremely
relieved. Last January, the U.S. Justice Department informed him that it
was dropping the 3-year criminal investigation against him for illegally
exporting a munition. The munition was not rarified uranium. It was
encryption software posted on the Internet. The Zimmermann investigation
was widely publicized and has played an important role in bringing the
encryption debate out in the open and into the halls of Congress.
The Zimmermann story is not over yet. Because, while Silicon Valley
CEO's and venture capitalists are wooing him with eyes on his current
"privacy" project - a software program for telephones which he claims
will make wiretapping virtually impossible - law enforcement officials
will likely continue to closely watch his activities.
CRYPTOGRAPHY -
Cryptography is the ancient art of concealing the content of a message
by scrambling the text. Historically, it was used for communicating
military secrets. Now, the secrets might be commercial, personal,
political or criminal, and communicated over the Internet.
A would-be reader of an encrypted message must have a "key" to
descramble the message. Encryption software, the modern method of
encryption, uses a mathematical algorithm to scramble a message.
There are two primary forms of encryption software: single-key systems
and two-key systems. In a single-key system, the data is encrypted and
decrypted using the same key. The weaknesses of the single-key system
are that the key is not completely secret because both the sender and
the receiver must have the key. Additionally, at some point prior to the
first encrypted communication, the key itself must be communicated in an
manner that does not use the same encryption method.
A two-key system, also known as a public key system does not have these
weaknesses. This system uses two keys, one private and the other public.
The public key is given out freely and will encrypt a message. However,
only the private key, which does not need to be communicated to anyone,
can decrypt the message. It is practically impossible to determine the
private key from an examination of the public key.
ENCRYPTION REGULATIONS -
The Bureau of Export Administration (BXA), under the U.S. Commerce
Department, controls licensing for most exports from the U.S. However,
the BXA is excluded from controlling items listed on the U.S. Munitions
List. The Munitions List designations are made by the State Department
with the concurrence of the Defense Department, and are contained in the
International Traffic in Arms Regulations (ITAR).
The Munitions List includes things like grenades, torpedoes, and
ballistic missiles. The list also includes "cryptographic (including key
management) systems, equipment, assemblies, modules, integrated
circuits, components or software with the capability of maintaining
secrecy or confidentiality of information or information systems."
The State Department relies on the National Security Agency's (NSA)
expertise when deciding what encryption programs to include on the
Munitions List. The NSA, a member of the U.S. Intelligence Community
under the Defense Department, is responsible for decoding the signals of
foreign governments and collecting information for counterintelligence
purposes. The NSA review process is classified and not available to the
public. However, generally, if the NSA cannot relatively easily break an
encryption algorithm, it will not approve it for export.
A violation of the export restrictions on encryption can result in a
maximum criminal penalty of $1 million and 10 years in prison or a
maximum civil penalty of $500,000 and a three-year export ban.
There are no restrictions on encryption systems contained in software
marketed solely in the U.S. Most other countries do not restrict export
of encryption software. However, in France, the private use of
cryptology is not permitted, unless the government is provided with the
private key.
EFFECTIVENESS OF THE LAW -
It is questionable how well the current law achieves its objectives. The
encryption export restrictions are intended to protect the national
security of the U.S. However, since much sophisticated encryption
software is now being developed out of the U.S., it is unclear how
important these restrictions remain. Additionally, national security is
threatened from both internal as well as external sources. Therefore,
since there are currently no restrictions on the use, development or
distribution of encryption software in the U.S., these restrictions play
little role in guarding against internal threats.
The law also produces some strange results. Encryption software can be
imported into the U.S., but the same software cannot later be taken out
of the U.S. A U.S. citizen can develop sophisticated encryption software
abroad and have it marketed internationally, but cannot do the same if
the development occurs in the U.S. The State Department has ruled that
a book on applied cryptology, which contains source code for strong
encryption algorithms may be exported, but the verbatim text of the
source code when on a computer disk cannot.
CHANGES IN THE LAW -
The government has been moving in two directions at once. While there
has been some lifting of the restrictions on the export of encryption
software, there have also been developments indicating that the
government desires to gain a "back door" to allow law enforcement
officials the ultimate ability to access any encrypted message.
One example of the lifting of restrictions was in 1992, when mass
marketed software with "light" encryption was made subject to an
expedited 15-day or 7-day review by the State Department. This increased
the likelihood that export licenses would be granted for such software.
Additionally, effective this year, under certain circumstances, a U.S.
citizen may temporarily take encryption software abroad for personal
use.
However, at the same time the export restrictions are being lightened,
several government initiatives have attempted to grant the government
skeleton keys to access encrypted messages, such as the 1993 Clipper
Chip initiative and the Escrowed Encryption Standard mandated for the
federal government. Both of these developments seek to provide the
government with the ability to access private keys. Furthermore, there
has even been mention of seeking to criminalize the use of encryption in
the U.S., unless private keys are escrowed with the government, as is
currently the law in France.
Most recently, on March 5, 1996, Sen Patrick Leahy (D-VT) introduced the
Encrypted Communications Privacy Act of 1996 (S. 1587). If it becomes
law, the Act would (1) remove export restrictions for "generally
available" encryption software, (2) shift authority for export decisions
from the State Department and NSA to the Commerce Department, (3)
criminalize the use of encryption to obstruct the investigation of a
felony, and (4) regulate disclosure of encryption keys by key escrow
agents.
The Act would greatly loosen the restrictions on exporting encryption
software. However, it would still probably be up to the NSA to determine
what software is "generally available." Furthermore, since the exclusion
will be limited to encryption software that is generally available, U.S.
companies will always be lagging behind foreign competitors, because
U.S. companies will not be permitted to take the lead in the
international marketing of cutting edge encryption products.
Lastly, some have expressed concern over two features of the Act. One is
that the Act sets forth the first instance in the U.S. of specifically
criminalizing the use of encryption. And second, if private key escrow
is intendeed to remain voluntary why is so much of the Act devoted to
escrow issues?
The encryption debate has a long way to go and reflects a fundamental
struggle between ensuring personal freedom while providing the
government with the means of maintaining a safe society.
-- END --
ABOUT THE AUTHOR: Mr. Galkin is an attorney in private practice in
Owings Mills, Maryland. He is also the adjunct professor of Computer Law
at the University of Maryland School of Law. He is a graduate of New
York University School of Law and has concentrated his private practice
on intellectual property, computer and technology law issues since 1986.
He represents small startup, midsized and large companies, across the
U.S. and internationally, dealing with a wide range of legal issues
associated with computers and technology, such as developing, marketing
and protecting software, purchasing and selling complex computer
systems, and launching and operating a variety of online business
ventures.
===> Mr. Galkin is available for consultation with individuals and
companies, and can be reached as follows: E-MAIL:
wgalkin@earthlink.net/TELEPHONE: 410-356-8853/FAX: 410-356-8804/MAIL:
10451 Mill Run Circle, Suite 400, Owings Mills, Maryland 21117.
------------------------------
Date: Wed, 6 Mar 1996 10:22:50 -0800 (PST)
From: Declan McCullagh
Subject: File 3--Mike Godwin: "The Backlash Against Free Speech on the Net"
[Feel free to redistribute. -Declan]
Speech by Mike Godwin, Online Counsel for the Electronic Frontier Foundation
"Fear of Freedom: The Backlash Against Free Speech on the 'Net"
This is the luncheon speech given by Mike Godwin at a technology conference,
"New Media Technology: True Innovations or Electric Fork?," jointly
sponsored by the Freedom Forum Pacific Coast Center and The Freedom Forum
Media Studies Center. The conference was held in the Pacific Coast Center,
Jack London Square, Oakland, California, Feb. 13, 1996. The luncheon was
held next door at Scott's Seafood Restaurant. Mr. Godwin was introduced by
Adam Clayton Powell III, director of technology studies and programs at the
Media Studies Center. Mr. Powell concluded his introduction by mentioning
Mr. Godwin's unusual e-mail address.
MIKE GODWIN
I'm often asked why I chose the username "mnemonic." I use it on almost
every system on which I have an account. I chose it long ago because of a
William Gibson short story, "Johnny Mnemonic," a science-fiction short
story from 1981.I've used it for many years and I didn't anticipate when I
picked it more than a decade ago that suddenly cyberspace would be making
national headlines.
William Gibson is the science fiction novelist who invented the term
"cyberspace" more than a decade ago. He probably never anticipated quite the
set of controversies that we're facing today. Most of them don't involve
high tech computer hackers or huge multinational corporations with monster
databases in cyberspace. Instead they involve something that's very
fundamental and personal to Americans. They involve freedom of speech and
privacy.
To give you an idea about the backlash against freedom of speech on the
Net, let me tell you a little about what happened when I set up my first
home page on the Worldwide Web.
When you get a home page, you're never quite sure what to put on it. I
had some pictures of myself that I didn't like much. But I also have lots
of baby pictures and I liked those a lot. And I thought everybody in the
world ought to be able to see them. So I scanned them in and I put them up
on my home page, and then I got e-mail from someone who said, "Aren't you
afraid that by putting a picture of your child on the Internet you're
going to invite child molesters to target your child as a potential
victim?"
This is how far we have come.
The Internet which the press and public has seen as a threat, as a
cornucopia of pornography, was once upon a time seen as a boon to the
nation and to the world. But now there is a dismaying backlash against
freedom of speech on the Net.
I'd like to take you back to the dim dawn of time: 1993. Remember when
there was so much hype about the information superhighway, that it made
the cover of Time magazine? We were told that 500 channels of all sorts of
content would somehow make its way into our home. Every library, school,
hospital, and home would have a connection to the Internet. And everyone,
literally everyone, could potentially be a publisher.
Three measly years later the Internet is widely perceived as a threat.
Why? Because everyone is a publisher! Because there are way more than 500
channels of this stuff! And because it will be connected to every library,
school, hospital and home! Many of the people publishing on the Internet
will not have been to journalism school! Many of them will say things that
offend other people! Many of them will publish their own opinions without
any notion of what is fair play, or nice, or middle-of-the-road
politically correct.
This is frightening people. It's even more frightening to see how these
fears of the Net have played out in the media and in the United States
Congress.
The original hype about the Internet was justified. There is something
very different from other kinds of communications media about the medium
of the Net.
Previously, we used the telephone, which is a one-to-one medium. Telephone
conversations are intimate. They're two-way, there's lots of information
going back and forth. But you don't reach a mass audience on a telephone.
Telephones work best as one-to-one media. And there's no greater proof of
this than to try to participate in a conference call. Conference calls are
attempts to use telephones as many-to-many media and they're always
exasperating.
For even longer, we've had one-to-many media, from one central source to
large audiences. These include the newspaper, a couple of centuries-old
technology. Movies. Broadcasting. These media have a certain power to
reach large audiences, but what they gain in power they lose in intimacy
and feedback. You may see all sorts of things on TV, but it's very hard to
get your opinions back to the broadcaster or back to the editor of the
newspaper. Even the narrow channels that we're allowed, whether op ed
pages or letters to the editor or the nanosecond of time to answer a
televised editorial, are wholly inadequate. You never really get anything
like equal time, no matter what the FCC has said.
The Net and computer technology has changed all this. It is the first
many-to-many medium. It is the first medium that combines all the powers
to reach a large audience that you see in broadcasting and newspapers with
all the intimacy and multi-directional flow of information that you see in
telephone calls. It is both intimate and powerful.
Another way this medium is different is pure cost. It takes many millions
of dollars to start up a daily newspaper. If you were to succeed -- this
is not the best year to do this, by the way -- you will find that it's an
expensive process. You have to be highly capitalized to reach audiences of
hundreds of thousands, or if you're lucky, millions.
But now everybody can afford a PC and a modem. And the minimal cost of
connecting to the Net can reach audiences far larger than the ones reached
by any city's Times-Herald Picayune, or even the New York Times or Time
magazine. We're talking global.
This is a shift in power. It grants to individual citizens the full
promise of the First Amendment's Freedom of the Press. The national
information infrastructure or the information superhighway or the Net or
whatever you're in the mood to call it makes it possible to reach your
audience no matter who your audience is and no matter where they are.
There's no editor standing between you and your readers -- changing what
you want to say, changing your content, shortening it or lengthening it or
altering it to make it "acceptable."
I often think of poets. It's been a long time since a volume of poetry has
regularly stood up on the best seller list. People who are poets, and we
have a lot of good poets around these days, don't often succeed
commercially, or sell. even a few thousand copies of a volume of poetry.
But if that poet puts his material on the Internet, he can reach literally
every single person who would ever understand his masterpiece. And that is
a fundamental shift.
So why the backlash? Why the fear? I think part of it is that people get
on line and discover that it makes some things easier and more accessible.
Itis possible for some people to find pornography on the Internet. It is
also possible to get so called "dangerous information." And it's probable
for people to say bad things about each other.
So people think there ought to be some new kind of control, either legal
or social. I remember the immense national headlines surrounding the
prosecution of a Milpitas, California couple who operated a micro-computer
bulletin board system. They were prosecuted in Memphis, Tennessee. It was
quite a good story, because prosecutors in Memphis had reached all the way
across the country to get a gentleman who was selling adult material out
of his house on a computer. But I noticed that the stories were expanded
into a perception of a general problem. The problem of pornography or
obscenity on the Net.
This change in perception is widespread. Someone recently asked me how
many hours a day I spend on line. I said, I spend six or eight hours, some
days even more, I work on line. And he actually said, "It must be bad with
all that pornography.
" I never see pornography on the Internet," I said.
"You're kidding," he said.
"No, I guess there's some out there, but I never go looking for it, I have
work to do."
He thought that when you turned on your computer and connected it to the
Internet, pornographic images simply flooded over the computer monitor
into your face. What's worse, he thought that maybe they flooded over the
computer monitor into your child's face. To judge from the question I had
about putting my child's picture on the Web, some people think that child
molesters can reach through the computer screen and grab your child out of
your living room.
How did we get this amount of fear, and how does it reflect itself in
other ways?. I can think of one other example. It involves Howard Kurtz,
the esteemed media critic of the Washington Post. Mr. Kurtz, who is widely
regarded, and rightfully so, as an astute critic of the traditional media,
wrote two stories in the course of about a year about the Net.
The first story involved a Los Angeles Times article by a fellow named
Adam Bauman that somehow conflated hackers, pornography, spies and
cryptography in one story. It was kind of amazing to see all that stuff in
one story. It was as if Mr. Bauman had had a check list of hot button
issues on the Internet. The story was widely criticized for not being
logical, not being coherent, not justifying his assertions, and people
said bad things about Mr. Bauman on the Net. Howard Kurtz, the media
critic, looked at the story and did he think how terrible that the L.A.
Times to run this terrible story? No. He was horrified that people on the
Internet would say bad things about reporters. Sometimes they use impolite
language. Now how many of us have never wished we could use impolite
language to a reporter? The Internet enables us to do that.
The second Howard Kurtz column involved Time magazine's cover story from
last summer which featured the height of what turned out to be a patently
fraudulent study of so called cyberporn from a con artist at Carnegie
Mellon University. The person has since been exposed, and part of the
reason he was exposed was that there were a lot of reporters, a lot of
amateur reporters on the Net who looked into his research, who read his
study and criticized it and who looked into the past of the person who
wrote the study, and they discovered he'd done similar cons before. There
was a lot of criticism of Time magazine and of the author of that story
for buying into the hype about so called cyberporn. When Mr. Kurtz wrote
about this controversy, did he criticize Time magazine or the reporter who
wrote that story? No. In fact, he criticized the Internet for being so
nasty to that poor fellow at Time for hyping the fake crisis of cyberporn.
I was thinking about Mr. Kurtz' columns and I found that they dovetail
very nicely with a very common complaint that one hears about speech on
the Internet. People say you know, we think the First Amendment is a great
thing, but we never thought there'd be all these people using it so
irresponsibly. Don't you think there ought to be a law. There are other
matters that have used to press our hot buttons about the Internet, to
make us fear on-line communication.
They involve things like cryptography, the ability of every citizen to
make his or her communications or data truly private, truly secret, truly
protected from prying eyes.
And they involve things like copyright. For those of you who have been
following the discussion of copyright on the Net, you know that Bruce
Lehman of the Patent and Trade Office has authored a report that would
turn practically everything anyone does with any intellectual property on
line into a copyright infringement. If you browse it without a license,
that's an infringement. If you download it, that's an infringement. If you
look at it on your screen, that's an infringement. Three strikes and
you're out and you go to federal copyright prison!
There's also the sense that there's dangerous information on the Net.
People are very troubled by the fact that you can log in and hunt around
and find out how to build a bomb, even a bomb of the sort that was used to
blow up a building in Oklahoma City. The Washington Post, interestingly
enough, faced the issue of whether to publish the instructions on how to
make a fertilizer bomb of the sort that was used in Oklahoma City. When
they published in the story how the bomb was built, many people wrote into
the Washington Post and said, "You shouldn't have published that stuff,
people will get ideas! They will use that information to build bombs!" The
Washington Post editors, I think quite rightly, concluded that the people
reading the Washington Post were not the people who were building bombs.
That the people who were building bombs already knew how to do it.
But there's the sense that if this information is available on the
Internet, it's vastly more destructive to society than if it's available
in a library. After all, *children don't go to libraries*. I remember that
after the Oklahoma City bombing, I started getting a lot of calls in my
office at the Electronic Frontier Foundation from reporters who said,
"Tell me more about bomb-making information on the Internet -- we're doing
a follow-up on the Oklahoma City bombing."
Now, if you actually followed that story one of the things you know for
sure is that there seems to be *no connection* between computer technology
and the suspects in the Oklahoma City bombing. There doesn't seem to be
any evidence that any information from the Net was ever used in relation
to the Oklahoma City bombing. So why were people calling asking me about
dangerous information on the Net?
I have a theory. I think it goes something like this. They knew that the
chief suspect was a fellow named Tim McVeigh. And they knew that Tim
McVeigh might be associated with militia groups. And they knew that some
militia groups used bulletin board systems to communicate. And they knew
that bulletin board systems were "kind of like the Internet." And they
knew that there was information on the Internet, therefore there was a
connection between bomb making information on the Internet and the
Oklahoma City bombing. It was very interesting to see how these little
assumptions about the connection between the Net and bomb-making
information propagated throughout the media. (So far as we know, by the
way, there is no connection between Tim McVeigh
and computer technology except that at one point he is said to have
believed that he had a computer chip implanted in a very delicate place
during the Gulf War.)
Let me tell you a little bit about how the Net is misrepresented both to
the media and to the general public, and also to Congress. We hear about
the mythical child that finds pornography on line within 30 seconds of
logging on. You know, *I* can't even find pornography on line in 30
seconds of logging on. In fact, I can't find *anything* within 30 seconds
of logging on.
The second myth is that the Net is very much like broadcasting, therefore
deserves the kind of regulation that the Federal Communications Commission
administers to the broadcasting entities around the country. My own
feeling is this: "Why shouldn't anything that's legal in a Barnes and
Noble Bookstore or in the New York Public Library be legal on line?"
I ask this question again and again, and I had a debate one Sunday on a
Seattle radio station with a fellow from Morality in Media, Bob Peters. I
raised this question and Bob Peters responded: "But, Mike, computers come
into our home!" And I said "Well, you know, Bob, *books* come into my
home! And yet you wouldn't be able to limit the content of books the way
you want to limit the content of computer networks. We would think it was
totally a violation of the First Amendment to impose the kinds of
restrictions that you would impose on the Net on the publishers of books."
Why should the rules be any different? And yet you hear again and again
there ought to be new laws required to regulate the Net. That the Net is
currently unregulated in some way. That cases like the Milpitas couple who
were prosecuted in Memphis illustrate the need for new laws. Never mind
the fact that they were successfully prosecuted under old laws.
How can one equate the Net and broadcasting? I mean up to now, the nicest
thing that you could say about the broadcasting medium and the legal
regime that governs it was this: Those limits don't apply to any other
medium. The FCC doesn't control newspapers or books, and isn't that great?
The justification constitutionally for special regulation of content of
broadcasting has essentially been twofold. The notion that broadcasting
frequencies are scarce so therefore require the government to step in, and
not only allocate them, but govern their use for the public good. And
secondly, the notion that broadcasting is pervasive in some way. That it
creeps into the home in a special way that makes it uniquely different
from other media.
Regardless of whether you accept these justifications for content control
over the air waves, the fact is the Internet is nothing like broadcasting
in either way. Internet communication is not scarce. Every time you add a
computer to the Internet you've expanded the size of the Internet. It is
not pervasive because you don't have people pushing content into your
home, you have people logging on and pulling content from all over the
world. It is not the case that you log on and have stuff pushed at you
that you don't want to see. It is a fundamentally choice-driven medium, a
choice-driven form for communication very much like a bookstore, a
newsstand or a library, and therefore deserving of the same strong First
Amendment protections.
For those of you who weren't paying attention this year, the United States
Congress passed an omnibus telecommunications reform act. I think most of
the provisions there won a lot of popular support. The telecommunications
regulatory regime was very old and needed to be updated. There are debates
about how the balances ultimately ought to be struck, but there was a wide
consensus on the need to deregulate the traditional telecommunications
industries. Compare the fact that in one small section of the bill, the
"Communications Decency Amendment," we find the federal government, whose
competence to regulate all the other media has been indeed questioned,
imposing new regulations on content on the Net and with little, if any,
constitutional justification. You see, this isn't about pornography. This
isn't about obscene materials. This is about something called "indecency,"
a far broader category that you might think involves pornography, but in
fact, it encompasses quite a bit more.
For example, a George Carlin comedy routine has been restricted under the
name of indecency. The Allen Ginsburg classic poem, "Howl," has been
restricted from radio because it was deemed by one court to be indecent.
Various other kinds of material from the high to the low, from Allen
Ginsburg to Jackie Collins' novels, cannot be spoken or uttered on the
radio. Now why is that? The FCC has special power and the government and
the congress has special power to control content in the broadcasting
arena. But where's the justification for the expansion of that federal
authority to this new medium that holds the power of granting freedom of
the press to every citizen. Where does the Constitution say the government
can do that? Where does the First Amendment say the government can do
that?
Everybody more or less knows something about what qualifies as obscene.
You know it has something to do with "community standards," right? And
with appealing to the "prurient interest." A work has to be a patently
offensive depiction of materials banned by state statute and appeal to the
prurient interest to be obscene and it also has to meet one other
requirement. It also has to lack serious literary, artistic, social,
political or scientific value. That's how something is classified as
"obscene."
The reason that religious fundamentalist lobbying groups want to expand
the notion of indecency to the Net is that they are very troubled by the
test for obscenity. They regard the serious literary, artistic, social and
political clause of the test for what is obscene to be a sort of an escape
clause for pornographers. What they would really like to be able to do is
to prosecute anyone who distributes content in any way other than by
printing ink on dead trees under a far broader censorship law that has no
provision for artistic value or social importance.
That is something I find very, very frightening. This is not about
protecting children. We've heard it again and again, we're trying to
protect our children from bad content on the Net. But this is not about
protecting children. This is not about pornography. (I wish it were about
pornography. That's easy to talk about.) But it's about a far broader
class of speech. So the Communications Decency Amendment is not really
about protecting children, it's about silencing adults. We were sold the
Internet, we were sold the information superhighway as this great global
library of resources. Now you have people in Congress and people on the
religious right who want to reduce the public spaces of the Net to the
children's room of the library.
I think we can do better than that, and I think American citizens can be
trusted with more than that. It should be remembered whenever we look at
how to apply the First Amendment to any medium--be it the Net or anything
else--that the purpose of the First Amendment is to protect speech that is
offensive, troubling, or disturbing because nobody ever tries to ban the
bland, pleasant, untroubling speech. This new law, the Communications
Decency Amendment, creates immense problems for anyone who's a provider,
for anyone who's a user. In fact, the interests of the industry and the
interests of the consumers are essentially the same.
And the media have a special responsibility not only to make these issues
clear but also not to play to our fears anymore. Because the fact is,
Americans are nervous about sex, we're nervous about our children, and
we're nervous about computers. So if you combine all of those into a
newspaper story, you could pretty much drive anyone into a frenzy of
anxiety. And the impulse to regulate is always there.
But you'd better think twice before calling for new regulation because
these are the rules that we are all going to play under in the 21st
century. It is important to understand that this is the first time in
history the power of a mass medium lies in the hands of potentially
everybody. For the first time the promise of freedom of the press will be
kept for everyone. A. J. Liebling famously commented that freedom of the
press belongs to those who own one. Well, we all own one now.
The Net is an immense opportunity for an experiment in freedom of speech
and democracy. The largest scale experiment this world has ever seen. It's
up to you and it's up to me and it's up to all of us to explore that
opportunity, and it's up to all of us not to lose it. I'm a parent myself,
as you know. And I worry about my child and the Internet all the time,
even though she's too young to have logged on yet. Here's what I worry
about. I worry that 10 or 15 or 20 years from now she will come to me and
say, "Daddy, where were you when they took freedom of the press away from
the Internet?" And I want to be able to say I was there -- and I helped
stop that from happening.
------------------------------
Date: Thu, 21 Mar 1996 22:51:01 CST
From: CuD Moderators
Subject: File 4--Cu Digest Header Info (unchanged since 7 Apr, 1996)
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End of Computer Underground Digest #8.30
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